By: Walter J. Liszka, Esq.
On August 26, 2014, Illinois Governor Pat Quinn signed into law House Bill 8 (HB8) that amends the Illinois Human Rights Act (IHRA) by placing "new obligations on employers" with regard to their pregnant employees. While the law will not take effect until January 1, 2015, employers should be cognizant of the new obligations imposed upon them.
As most readers will remember, the IHRA had long standing prohibitions on employment discrimination "on the basis of pregnancy" (775 ILCS 5/2-102(H) and (I)). It is also well known that pregnancy by itself does not qualify as a disability under the Americans with Disabilities Act (ADA) and, therefore, an employer does not need to provide any reasonable accommodation to a woman based solely on her pregnancy. These facts raise questions in the mind of the author as to why Governor Quinn and the Illinois State Legislature are in such a rush to provide these modifications. It is even more curious since the Supreme Court will hear in the fall term the case of Young v. United Parcel Service, Inc., which will provide needed guidance on pregnancy and disability issues.
Regardless of the above facts, the IHRA has now been amended to provide not only the pregnancy protections previously under the Act, but also an entire new section (775 ILCS 5/2-102(J)) that requires what are called "reasonable accommodations."
The "reasonable accommodations" will have to be provided to women on account of pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth. Essentially, employers will have to treat pregnancy and pregnancy-related conditions like they treat any other disability under the confines of the ADA. These reasonable accommodations must be made to a pregnant applicant or employee, whether that employee is full-time, part-time, or probationary. The term "reasonable accommodations" means any reasonable modifications or adjustments to the job application process or to the work environment or to the manner or circumstances under which the position is performed. The Bill also provides a "non-exclusive list of reasonable accommodations" which includes:
- More frequent or longer rest breaks.
- Private non-bathroom space for breastfeeding and related activities such as pumping milk.
- Reasonable and provided seating.
- Assistance with manual labor.
- Modification or adjustment of equipment.
- Temporary transfer to less strenuous or hazardous position.
- Reassignment to a vacant position.
- Job restructuring.
- Light duty or part-time modified work schedule.
- Time off to recover from conditions related to childbirth.
- Leave necessitated by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth.
If, in fact, leave is afforded as some form of reasonable accommodation, the employee must be guaranteed to be reinstated to her original position or to an equivalent position with pay seniority, retirement, and fringe benefits. It is quite probable that based on the "medical conditions" that this type of leave for pregnancy could extend beyond what is required under the Family Medical Leave Act (FMLA) and the twelve (12) week limitations.
Employers may require medical documentation from the healthcare provider with regard to the need for a reasonable accommodation and employers must engage in the interactive process with the involved employee with regard to providing the proposed accommodations.
Obviously, this law, since it will apply to all employers having one (1) or more employees, will have a major impact on work conditions and day-to-day actions taken in any employment setting. How this law will square with any future Supreme Court decision is anyone's guess, but I am quite certain that the "legal skills" of Quinn, Madigan, and Cullerton are not on the same level as the "Supremes." Regardless, the wise employer will begin the analysis to deal with this legislation because any Supreme Court decision, at its earliest, is some time in the latter part of calendar 2015.
Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at firstname.lastname@example.org .